The war on ‘lawfare’

The state of Israel and its supporters have attempted to brand the use of international law in aid of the Palestinians as 'legal terrorism'. Daniel Machover explains the need to resist their efforts

February 8, 2010
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5 min read

The first anniversary of Israel’s military operation in Gaza came two weeks after a judicial arrest warrant was issued in London against former Israeli foreign minister (and current leader of the Israeli opposition) Tzipi Livni. Instead of provoking a timely debate on the serious allegations faced by Livni, the embarrassed response of British politicians to the grant of the arrest warrant ensured that Israel’s concerns about UK courts exercising universal jurisdiction over suspected Israeli war criminals took centre stage. Gordon Brown reportedly rang Ms Livni’s office to tell her she would be welcome in the UK. It is no accident, therefore, that the attorney general, Baroness Scotland, was addressing the Hebrew University on 5 January on the subject of ‘Lawfare – Time for Rules of Engagement?’

Recently, diehard supporters of Israeli policies have used this label of ‘lawfare’ as part of a concerted effort to bring into disrepute the nonviolent actions of Palestinians in seeking justice outside the Israeli legal system. Cases in third countries, whether civil or criminal, are characterised as being politically motivated ‘legal terrorism’, with no legal merit. Indeed, anyone who tries to focus on the substance of such cases is attacked as anti-semitic and/or supporting terrorism. The lawyers involved are charged with manipulating the legal systems of naïve countries that should know better than allowing pro-Palestinians (for which read ‘terrorists’) cheap publicity.

Why are foreign courts allowing such cases to get anywhere, say supporters of Israel, when people know that as a functioning democracy Israel’s legal system can be the fair arbiter of genuine grievances? The word ‘lawfare’ is thus given darker and darker connotations, with vicious attacks on anyone who supports the rule of law in all circumstances, including Justice Richard Goldstone, the Jewish South African judge who led the UN’s independent fact-finding mission on Israel’s January 2009 attack on Gaza.

Never mind that the Israeli legal system has proved itself to be subservient to the grinding machine of Israeli occupation and repression, from the illegal wall to the siege on Gaza and war crimes. The truth is that, as Palestinians increasingly seek justice abroad, Israel is increasingly threatened by the merits of the cases in question.

Until now, case after case has been defeated by successful political pressure by supporters of Israel, which has shut down access to justice and inflicted procedural defeats on Palestinians seeking a fair hearing of their grievances. Meanwhile, the alliances created by these Israeli tactics are breathtaking. For example, in a test case on the issue of sovereign immunity, Yousuf v Samantar, coming before the US supreme court in March, supporters of Israel have joined hands with the Saudi government to support a Somali defendant – a former defence minister and top official under the regime of President Siad Barre, denounced by international groups for its systematic use of torture and arbitrary arrests, and for the rape and murder of political rivals and dissidents. Their aim is to block civil claims against former government officials on procedural grounds.

Alongside the ‘lawfare’ offensive is Israel’s sustained attempt to create a broad alliance with the US, its Nato allies and powerful countries such as Russia in favour of changing the law on the use of force by states against non-state actors. Israeli leaders argue that this needs to be updated to cope with the challenges of the ‘war on terror’. Among other things, they want it to become lawful to use disproportionate force against civilians where they are proximate to what state actors identify as legitimate military and ‘quasi-military’ targets.

This is one of the major arguments being used by Israel to block the recommendations of the UN’s Gaza fact-finding mission, whose ‘Goldstone report’ came out in in September 2009. Israel’s military advocate-general, Major-General Mandelblitt, explained to a gathering of the Israel Bar that the report was ‘against all countries fighting terrorism. The report is not aimed at Israel. It is aimed at the west, at any country fighting terrorism. It is meant to tie their hands and cause them to lose wars.’ He said that by refusing to grant Goldstone’s demand for an independent investigation of the military operation in Gaza, Israel was defending the west’s war against terrorism.

Fusing attacks on ‘lawfare’ and the need for the law to support the ‘war on terror’ was a significant feature of Tzipi Livni’s response to the arrest warrant against her. She said that ‘what needs to be put on trial here is the abuse of the British legal system. This is not a suit against Tzipi Livni, this is not a lawsuit against Israel. This is a lawsuit against any democracy that fights terror.’

Universal justice will be at grave risk if such arguments hold sway. The exercise of universal jurisdiction and the arrest warrant procedure has become an increasingly important part of the protection that international criminal law was designed to create. It must have a significant deterrent effect to future regimes, which might otherwise resort to mass murder, torture and war crimes.